Lake Cda Ownership Goes To Trial Tribe, State To Dispute History, With Future Governance At Stake

History will play a big role in helping a federal judge decide whether the Coeur d’Alene Tribe owns the south end of Lake Coeur d’Alene.

While much of the trial that begins Monday in U.S. District Court will dig up the past, it is the lake’s future that is at stake.

“If we win, it means a healthier lake for the future of North Idaho, for all the people who live around it,” said Bob Bostwick, the Coeur d’Alene Tribe’s press secretary.

If successful in court, the tribe will have the power to control fishing, boat docks and other lake uses now regulated by the state.

Opening arguments in the trial begin Monday before Judge Edward Lodge in Coeur d’Alene.

Attorneys will debate whether the tribe was ever dependent on the lake for subsistence fishing, whether the federal government knew that and intended to reserve the lake for the tribe, and whether government documents conveyed ownership to the tribe.

The case was filed against the state of Idaho by the U.S. Justice Department in 1994 on behalf of the U.S. Department of Interior, which got involved at the tribe’s request. The tribe intervened in the suit as a plaintiff.

A similar lawsuit filed by the tribe claimed ownership to the entire lake, but it was thrown out by the U.S. Supreme Court last summer. The court ruled that under the 11th Amendment to U.S. Constitution, individuals and tribes cannot sue a state in federal court.

The court did not rule on the merits of the tribe’s ownership claim, however. That’s what will be argued this week.

The Coeur d’Alene Tribe still contends that it owns the entire lake, but the next step in pursuing total ownership is up to the tribal council, Bostwick said.

The tribe wants ownership because it believes it can provide better stewardship, Bostwick said. The state hasn’t done enough to prevent and clean up pollution caused by upstream mining activities, according to the tribe.

“It could mean legal muscle to enforce cleanup, but for the people who live around the lake, there would be no change,” he said.

Heavy metal contamination flows from the mouth of the Coeur d’Alene River at Harrison north toward the Spokane River. But the lawsuit only deals with the lake’s southern portion, from about Harrison south.

The outcome of the trial “won’t affect us,” said Holly Houston, spokeswoman for mining companies whose past operations are blamed for polluting the lake. Those companies are named in another federal and tribal lawsuit that holds them responsible for natural resource damages in the Coeur d’Alene River basin, including Lake Coeur d’Alene.

“The mining companies side with the state over the issue of ownership,” Houston said. The companies don’t believe the tribe has any grounds to sue over the pollution because they don’t consider the tribe a natural resource trustee, unlike federal resource agencies or the state.

The Department of the Interior concluded that the tribe only owns the southern end of the lake because of an 1889 agreement between the tribe and federal government, U.S. attorney Hank Meshorer said. The agreement called for the tribe to relinquish reservation land, the lake and Coeur d’Alene River north of the mouth of the river in return for $500,000.

The tribe and federal government trace tribal ownership to “time immemorial” when the tribe held aboriginal title to more than 3.5 million acres in northern Idaho and eastern Washington. The tribe’s homeland centered on Lake Coeur d’Alene.

The document most often cited as the government’s recognition of the tribe’s claim to the lake is an 1873 Executive Order signed by President Ulysses S. Grant.

The order established a reservation for the tribe, the northern boundary of which was the Spokane River and included most of the lake. However, the order was never ratified by Congress.

The government acknowledged the tribe’s claim to the lake in other ways, according to a U.S. Justice Department legal brief.

For example, in the early 1880s the U.S. Commissioner of Indian Affairs was “adamant” about strictly enforcing the law within reservation boundaries. When an Interior Department investigation found that whiskey had been sold and served on a lake steamer, the owner of the steamer was charged with selling whiskey on the reservation.

Idaho was granted statehood in 1890.

At that point, says state Deputy Attorney General Steven Strack, “there’s a presumption of state ownership of all submerged lands under all navigable waters.”

The burden of proof is on the federal government to show that the U.S. government made it clear that it intended to convey or reserve those submerged lands for the Coeur d’Alene Tribe, Strack said.

The trial is expected to last two weeks and will involve 18 witnesses, including historians, surveyors, an economist and an anthropologist.

, DataTimes ILLUSTRATION: Map: Disputed shoreline

MEMO: Cut in the Spokane edition.